Citation NR: 9626104
Decision Date: 09/17/96 Archive Date: 09/26/96
DOCKET NO. 94-08 456 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim for entitlement to service connection for
post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Heather J. Harter, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1968 to December
1970.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends service connection is warranted for
PTSD. He has submitted evidence which he claims is new and
material; and he asks the Board of Veterans’ Appeals (Board)
to reopen his claim and review it on a de novo basis,
considering all the evidence of record.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has submitted new
and material evidence to reopen a claim for entitlement to
service connection for PTSD.
FINDINGS OF FACT
1. The most recent final decision regarding this claim
occurred in November 1989, when the Board held that the
veteran had not submitted new and material evidence to reopen
the veteran’s claim for entitlement to service connection for
PTSD.
2. The evidence submitted since that determination includes
medical records reflecting diagnoses of PTSD.
3. This evidence has not been previously considered and is
relevant, probative and capable of changing the outcome of
this case.
CONCLUSION OF LAW
The evidence received since the November 1989 Board decision
is new and material, and the claim for entitlement to service
connection for PTSD is reopened. 38 U.S.C.A. §§ 1110, 5107,
5108, 7104 (West 1991); 38 C.F.R. § 3.156 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim is well grounded within the meaning of 38
U.S.C.A. § 5107(a). That is, he has presented a claim which
is plausible.
A final decision cannot be reopened unless new and material
evidence is presented. Pursuant to 38 U.S.C.A. § 5108, the
Secretary must reopen a finally disallowed claim when "new
and material" evidence is presented or secured with respect
to that claim. Kightly v. Brown, 6 Vet.App. 200 (1994).
"New" evidence is that which is not merely cumulative of the
evidence of record. "Material" evidence is that which is
relevant to and probative of the issue at hand, and of
sufficient significance that there is reasonable possibility
that consideration of the new evidence when viewed in the
context of all the evidence, both new and old, would change
the outcome. 38 C.F.R. § 3.156; Smith v. Derwinski, 1
Vet.App. 178, 179 (1991). For this purpose, the credibility
of evidence, although not its weight, is to be presumed.
Once the claim is reopened, the presumption of credibility no
longer applies. Justus v. Principi, 3 Vet.App. 510 (1992).
Service connection may be granted for any disability
resulting from injury suffered or disease contracted in line
of duty, or for aggravation in service of a pre-existing
injury or disease. Service connection may be established by
demonstrating that a disability was first manifested during
service and has continued since service to the present time
or by showing that a disability which pre-existed service was
aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R.
§ 3.303.
Service connection for PTSD requires medical evidence
establishing a clear diagnosis of the condition, credible
supporting evidence that the claimed inservice stressor
actually occurred, and a link between current symptomatology
and the claimed inservice stressor. 38 C.F.R. § 3.304(f)
(1995). In Zarycki v. Brown, 6 Vet.App. 91 at 97 (1993), the
United States Court of Veterans Appeals (Court) explained
that if the veteran engaged in combat and the claimed
stressor is related to combat, no further development for
evidence of a stressor is necessary. Where, however, the VA
determines that the veteran did not engage in combat with the
enemy, or that the veteran did engage in combat with the
enemy but the claimed stressor is not related to such combat,
the veteran’s lay testimony and/or written contentions, by
themselves, will not be enough to establish the occurrence of
the alleged stressor. Instead, the record must contain
service records which corroborate the veteran’s testimony as
to the occurrence of the claimed stressor. West v. Brown,
7 Vet.App. 70 (1994). The Court has held that the Board is
not bound to accept the diagnosis of PTSD if the evidence of
record does not objectively support that diagnosis. Wood v.
Derwinski, 1 Vet.App. 406 (1991).
The veteran has brought his claim for entitlement to service
connection for PTSD before the Board twice before. In May
1984, the Board denied entitlement to service connection on
the merits. At that time, the Board reviewed the veteran’s
available service medical records, reports of VA
hospitalizations, a VA psychological examination report, and
the contentions of the veteran and his representative. In
November 1989, the Board held that the veteran had not
submitted new and material evidence to reopen the veteran’s
claim for entitlement to service connection for PTSD. The
previous denials were essentially based on determinations
that there was no diagnosis of PTSD.
Now the veteran is again before the Board, presenting
evidence which he asserts is new and material. In support of
his attempt to reopen his previously-denied claim, he has
submitted reports of additional VA hospitalizations,
transcriptions of tapes which he claims he recorded while in
service in Vietnam and sent to his family, and additional
written contentions. Furthermore, in March 1993, he
underwent a VA examination for purposes of compensation, the
report of which has been included in his claims file. In
this regard, the Board notes that the recent VA medical
reports, including the March 1993 psychiatric examination,
and the VA hospital report from March to April 1993, reflect
diagnoses of PTSD. In light of the fact that there is now a
current diagnosis of PTSD, the Board concludes that the
additional evidence is new and material. It is apparent that
this evidence has not previously been considered and is
relevant and probative of the issue under review. Colvin v.
Derwinski, 1 Vet.App. 174 (1991). It raises the possibility
that the claim is valid in that it suggests that the veteran
has PTSD related to service. Accordingly, the Board
concludes that with the submission of new and material
evidence, the claim is reopened. The Board points out that
this determination pertains only to the limited question of
whether the evidence is new and material.
ORDER
The veteran’s claim for entitlement to service connection for
PTSD is reopened.
REMAND
As discussed above, when new and material evidence regarding
a previously-denied claim is presented, the claim must be
reopened and accorded a de novo review. Review of the
procedural history and development of the instant appeal
persuades the Board that it cannot decide the merits of the
appellant’s reopened claim without prejudice to the
appellant. Bernard v. Brown, 4 Vet.App. 384 (1993).
Prior to such adjudication of the veteran’s claim, however,
the Board is of the opinion that further development of the
evidence is necessary. The VA examiner who conducted the
veteran’s most recent VA examination for purposes of
compensation noted that although the veteran’s claims file
was provided in conjunction with the examination, medical
records regarding the veteran were in Waco and were not made
available to the examiner. All medical records pertaining to
the veteran’s mental health should be obtained and included
in the claims file prior to any further review.
As noted above, the veteran’s mental health condition has
been assigned diagnosis of PTSD by several different
physicians and psychologists since the November 1989 Board
decision. Each diagnosis, however, was based entirely upon
the veteran’s reported history and the stressors he reported.
As outlined above, if the veteran participated in combat and
the stressor is related to combat, no further development is
necessary. Upon remand, then, it must be determined whether
the veteran participated in combat. If not, further
evidentiary development to corroborate the veteran’s
contentions will be necessary. In this regard, it is
important to note that some of the events which the veteran
claims occurred during service and which continue to haunt
him, such as the murder of a Vietnamese prostitute, and his
involvement with drugs during service are most likely
unverifiable and if true, would have constituted misconduct
on his part. Service connection may be granted only when a
disability was not the result of the veteran’s own willful
misconduct. 38 U.S.C.A. §§ 105, 1110; 38 C.F.R. § 3.301(a).
In Zarycki v. Brown, 6 Vet.App. 91 (1993), the court held
that in addition to demonstrating the existence of a
stressor, the facts must also establish that the alleged
stressful event was sufficient to give rise to PTSD. In West
v. Brown, 7 Vet.App. 70 (1994), the court held that the
sufficiency of a stressor is a medical determination and,
therefore, adjudicators may not render a determination on
this point in the absence of independent medical evidence.
Thus, the question of the existence of a an event claimed as
a recognizable stressor must be resolved first by
adjudicatory personnel. If the adjudicators conclude that
the record establishes the existence of such a stressor or
stressors, then and only then, the case should be referred
for a medical examination to determine the sufficiency of the
stressor and as to whether the remaining elements required to
support a diagnosis of PTSD have been met.
To ensure that the VA has met its duty to assist the veteran
in developing the facts pertinent to his claim, the case is
REMANDED to the RO for the following development:
1. The RO should obtain all records of
VA medical treatment afforded to the
veteran which are not contained in his
claims file for inclusion in the file.
2. The RO should obtain through official
channels, copies of the veteran’s service
personnel records for inclusion in his
claims file.
3. The RO should contact the veteran and
request that he provide as much detail as
possible concerning all alleged stressful
events in service, to include names,
dates and units to which he was assigned.
4. The RO should make a formal
determination as to whether the veteran
engaged in combat for the purposes of
evaluating his claimed PTSD stressors.
If so, no further development regarding
the veteran’s claimed stressors need be
undertaken. If not, the RO should then
forward the veteran’s service personnel
records, the veteran’s “stressor”
statements, and any other relevant
documentation to the United States Army
and Joint Services Environmental Support
Group (ESG), 7798 Cissna Road,
Springfield, Virginia 22150, for
verification of all stressor events which
do not involve misconduct on the part of
the veteran.
5. If the veteran’s claimed stressor is
verified, as required by West, 7 Vet.App.
70, the veteran should then be afforded a
VA psychiatric examination to clarify the
nature and etiology of his psychiatric
disabilit(ies). His claims folder,
including all evidence obtained pursuant
to the above requests, must be made
available to the examiner for review
before the examination. The examiner
should be requested to review the
veteran’s medical history as reflected in
the claims file as well as the ESG report
in conjunction with the clinical
examination. All indicated tests and
studies should be performed. The
examiner should specifically present an
opinion regarding the validity of
previous PTSD diagnoses and further
identify whether the veteran’s current
psychiatric disabilit(ies), if any, are
related to events occurring during
service. The examiner should be
requested to make a specific
determination as to whether any of the
events conceded to have existed in
service by the adjudicators would be of a
quality sufficient to produce PTSD. The
examiner should be advised that only
those events in service conceded by the
adjudicators may be considered for
purposes of determining whether PTSD due
to service exists. If the examiner
concludes that an event of a quality
sufficient to produce PTSD occurred in
service, then he should determine whether
the veteran now has PTSD and, if so,
whether there is a causal nexus between
the current disorder and the event or
events in service. As the veteran’s
psychiatric profile is admittedly
complicated by his recurrent drug and
alcohol abuse, the veteran should be
scheduled for a period of hospitalization
and observation prior to the examination,
if it is deemed necessary for a clear
diagnosis to be reached.
Following completion of the above, the RO should review the
evidence and determine whether the veteran's claim may be
granted. If not, he and his representative should be
furnished an appropriate supplemental statement of the case,
and the case should then be returned to the Board for further
appellate consideration.
JAMES R. SIEGEL
Acting Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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